Shawn Richard Boutin v. State ( 2014 )

NUMBER 13-13-00115-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SHAWN RICHARD BOUTIN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, and Justices Garza and Perkes
Memorandum Opinion by Justice Perkes
Appellant Shawn Richard Boutin pleaded guilty to three counts of aggravated
sexual assault of a child less than six years of age, first-degree felonies, see TEX. PENAL
CODE ANN. § 22.021(a)(1)(B)(i, iii, and iv), (2)(B) and 22.021(f)(1) (West, Westlaw through
2013 3d C.S.), and a single count of continuous sexual abuse of a young child, a first-
degree felony. See id, § 21.02 (West, Westlaw through 2013 3d C.S.). Bench trial
found appellant guilty and assessed punishment for each of the four counts at life
imprisonment in the Texas Department of Criminal Justice, Institutional Division. The
sentences are to run concurrently. Appellant appeals his life sentences on the basis of
cruel and unusual punishment. We affirm.
I. PRESERVATION
By his sole issue on appeal, appellant argues the trial court’s assessment of four
concurrent life sentences constitutes cruel and unusual punishment in view of the
evidence presented by the defense. See U.S. CONST. amend VIII; TEX. CONST. art. 1, §
13.
To preserve error for appellate review, an appellant must make a timely, specific
request, objection, or motion and obtain a ruling from the trial court. TEX. R. APP. P. 33.1.
“This requirement applies even to errors of constitutional dimension, including those
asserting that a sentence is cruel and unusual.” Richardson v. State, 328 S.W.3d 61, 72
(Tex. App.—Fort Worth 2010, pet. ref’d) (citing Henderson v. State, 962 S.W.2d 544, 548
(Tex. Crim. App. 1997)); see Trevino v. State, 174 S.W.3d 925, 972 (Tex. App.—Corpus
Christi 2005, pet. ref’d).
To preserve an issue at trial by motion for a new trial, a defendant must present
the motion to the trial court. Richardson, 328 S.W.3d at 61 (citing TEX. R. APP. P. 21.6);
Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). Filing a motion for a new
trial by itself is insufficient for presentment; a defendant must ensure that the trial court
has actual notice of it. See Rozell, 176 S.W.2d at 230; Carranza v. State, 960 S.W.2d
76, 79–80 (Tex. Crim. App. 1998) (en banc) (interpreting predecessor rule, which is
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identical to 21.6). Actual notice may be evidenced by the judge’s ruling, signature or
notation on the proposed order, or by a hearing set on the court’s docket. See Carranza,
960 S.W.2d at 79; Richardson, 328 S.W.3d at 61.
Appellant did not object to his sentence at the punishment hearing. Although
appellant did subsequently file a motion for a new trial arguing that his punishment was
cruel and unusual, there is no evidence in the record to show that appellant presented his
new-trial motion to the trial court. Appellant failed to show that the trial court had actual
notice of his motion for a new trial and, as a result, failed to preserve his claim for review.
See TEX. R. APP. P. 21.6, 33.1; Richardson, 328 S.W.3d at 61 (holding defendant’s claim
of cruel and unusual punishment was not preserved where defendant failed to object at
trial and filed but did not present motion for new trial); see also Stewart v. State, No. 13-
12-00221-CR, 2013 WL 3517527, at *4 (Tex. App.—Corpus Christi July 11, 2013, no pet.)
(mem. op., not designated for publication) (same). We overrule appellant’s sole issue
as unpreserved for review on appeal.
II. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the __
26th day of June, 2014.
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